Kennaugh v. Miller

Decision Date12 April 2002
Docket NumberDocket No. 01-2281.
Citation289 F.3d 36
PartiesAugust KENNAUGH, Petitioner-Appellant, v. David H. MILLER, Superintendent of Eastern Correctional Facility, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Anthony V. Lombardino, Richmond Hill, New York, for Petitioner-Appellant.

Donna Aldea, Assistant District Attorney, Queens County, Kew Gardens, New York (Richard A. Brown, District Attorney, Queens County, Kew Gardens, New York, and John M. Castellano, Assistant District Attorney, Queens County, Kew Gardens, New York, of counsel), for Respondent-Appellee.

Before: LEVAL and CALABRESI, Circuit Judges, and DEARIE,* District Judge.

CALABRESI, Circuit Judge:

Petitioner August Kennaugh appeals from an order of the United States District Court for the Eastern District of New York (Korman, J.) denying his habeas petition. Kennaugh was convicted in the Supreme Court of the State of New York, Queens County, of second degree murder, as well as on two counts of first degree robbery. His conviction arose out of a robbery and murder committed by three men on October 5, 1979. During the course of the robbery, the owner of the restaurant, Guelfo Nelo Terzi, was stabbed to death. Petitioner was arrested four months later. After a jury trial, he was sentenced to concurrent indeterminate terms of 25 years to life for the murder conviction and 8 1/3 to 25 years on each of the robbery convictions. The Appellate Division affirmed his conviction without opinion, People v. Kennaugh, 92 A.D.2d 1090, 459 N.Y.S.2d 953 (2d Dep't 1983), and leave to appeal to the New York Court of Appeals was denied, 59 N.Y.2d 677, 463 N.Y.S.2d 1036, 450 N.E.2d 259 (1983), as was reconsideration of that denial, 60 N.Y.2d 592, 467 N.Y.S.2d 1038, 454 N.E.2d 133 (1983).

Petitioner seeks habeas relief on two grounds. See Kennaugh v. Miller, 150 F.Supp.2d 421 (E.D.N.Y.2001). First, he claims that the District Attorney failed to disclose that two restaurant patrons had observed the perpetrators shortly before the crime and were unable, a year later, to identify petitioner in a lineup. The state court's rejection of his Brady claim, he argues, "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). He also asserts that the state court rulings were contrary to or an unreasonable application of Brady. Second, Kennaugh contends that the state court admitted in-court identification testimony that was given under impermissibly suggestive circumstances and that the testimony should have been excluded as unreliable under Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

BACKGROUND

In the early hours of October 5, 1979, three young men, two of whom were carrying guns, forced their way into a restaurant after closing and demanded money from the cash register. During the course of the robbery, Guelfo Terzi was stabbed to death while Mrs. Gemma Terzi, Guelfo's wife, and Elio Rusnjak, the bartender, were thrown to the floor, tied up, and guarded by the men. As the robbers fled the restaurant, one man, whom Mrs. Terzi much later identified as the petitioner, pointed a gun at Mrs. Terzi and told her she should not speak with the police or remember his face. After the robbers left, Mrs. Terzi and Rusnjak freed themselves and discovered Mr. Terzi's body.

Kennaugh was arrested on February 3, 1980. At trial, the government presented evidence of Kennaugh's fingerprint on the cash register drawer, his statements to police at the time of his arrest, and eyewitness identifications. Kennaugh did not dispute that the fingerprint belonged to him, but instead attempted to offer an innocent explanation for its presence. The identification testimony was offered by Irving Silver, a restaurant customer, and by Mrs. Terzi. Silver stated that he observed the petitioner in the area of the restaurant approximately an hour before the crime. He also discussed his identification of Kennaugh in a July 1980 lineup and provided an in-court identification of petitioner as the individual whom he had observed the night of the crime.

Mrs. Terzi made an unexpected, in-court identification of Kennaugh as the man who had pointed his gun at her and threatened her when the robbers fled. Approximately seven months prior to trial, Mrs. Terzi had failed to recognize petitioner in a line-up and in several photo arrays. When she began her testimony, she started to cry and the trial court held a recess. The petitioner was seated at the defense counsel's table and Mrs. Terzi may have observed him being taken from the courtroom by court officers after the recess was called. During the recess, Mrs. Terzi informed the District Attorney that she recognized petitioner as the robber who had pointed the gun at her. The trial judge held a conference in his chambers in the course of which the District Attorney told the court and defense counsel that Mrs. Terzi was prepared to make an in-court identification. Defense counsel requested a Wade hearing to determine whether this testimony should be admitted in light of the suggestive setting out of which it arose. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The judge denied the motion and, when the trial resumed, Mrs. Terzi identified the petitioner.

After the jury convicted petitioner, his attorney discovered police reports containing information that two patrons of the restaurant had observed a group of men at the restaurant door buying cigarettes from Mr. Terzi around 1:00 am the night of the robbery and that when the patrons left the restaurant at 1:30 am, they saw the same three men on a nearby street corner. The reports discussed the patrons' inability to identify the petitioner in a photo array and in a lineup in October of 1980. The reports also stated that the patrons told the police that they would be able to identify the men who purchased the cigarettes if they saw them again in person.

Based upon these police reports, Kennaugh filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. He claimed that the failure to disclose this allegedly exculpatory material violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). After an evidentiary hearing, the state court denied the motion. The court concluded that the defense counsel was aware that the October 1980 lineup had occurred and that he, therefore, had a duty to inquire about the results of the identification attempt. Additionally, it found that the police reports were not material under Brady because the information did not create a reasonable probability that the outcome of the trial would have been different. The patrons were not eyewitnesses to the crime and no evidence linked the men whom the patrons observed to the men who committed the robbery.

At some point after the denial of petitioner's motion, petitioner's mother found two additional police reports discussing interviews with Mrs. Terzi and Rusnjak. In these reports, Mrs. Terzi and Rusnjak each stated that the young men who had bought the cigarettes were the same men who committed the robbery and murder. Although the nature of the state proceeding is not altogether clear, Kennaugh moved to reargue his earlier motion to vacate. He claimed that the new police reports, by connecting the two groups of men, resolved the question of the materiality of the restaurant patrons' failure to identify Kennaugh.

The state court treated this filing as a motion to renew Kennaugh's earlier action, and denied the motion for both substantive and procedural reasons. First, it found that, even taking into account the additional police reports, the result of the trial would not have changed. Order, Motion to Reargue, April 7, 1999, at 2. Second, the court noted Kennaugh's failure to offer a valid excuse for not including the additional police reports in his original motion to vacate, as required by New York State procedural law. Id. at 1-2; see Crim. Proc.L. § 440.10; see also Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588 (1st Dep't 1979). Although under New York procedure leave to appeal is available from the denial of a motion to renew, petitioner did not seek leave to challenge this denial.1

Petitioner filed his habeas petition on August 13, 1999, and his amended petition on March 1, 2000. In these he attacked the admission of Mrs. Terzi's in-court identification as well as the state court's rulings on his Brady claim. The district court denied his petition. With respect to the identification testimony, the court found that Kennaugh's claim raised "serious issues," but offered three grounds for denial of the petition. See Kennaugh, 150 F.Supp.2d at 432.

The court first found that the state determination was not contrary to clearly established law because the Supreme Court, in the absence of a pretrial identification, had not applied the factors in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), to an in-court identification. Kennaugh, 150 F.Supp.2d at 432. The court also determined that even under de novo application of Biggers, the testimony was admissible. Id. at 433. The court stated that the in-court identification was unquestionably suggestive and that, under the five Biggers factors, it was unreliable. Id. at 434-36. But the district court also considered a sixth factor and since rejected by this court, that looks to the existence of corroborating evidence of guilt in assessing the reliability of identification testimony. Id. at 436. This "factor" led the court to conclude that the testimony was properly admitted as reliable. Id. Finally, to the extent that the admission of the identification testimony was erroneous, the court found the error to be...

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